Martyn v Graham - [2003] QDC 447

DISTRICT COURT OF QUEENSLAND

CITATION:

Martyn v Graham [2003] QDC 447

PARTIES:

WILLIAM ROSS MARTYN as Executor of the Estate of Harold Maxwell Mead deceased

Applicant

v

KENNETH JOHN GRAHAM

Respondent

FILE NO/S:

669 of 2003

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

13 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2003

JUDGE:

Shanahan DCJ

ORDER:

Application dismissed.

CATCHWORDS:

SUMMARY JUDGMENT – application made pursuant to r 292 UCPR – whether it was appropriate that summary judgment be entered

ENFORCEMENT OF FOREIGN JUDGMENT AS A DEBT DUE AT COMMON LAW – where applicant was the executor of an estate entitled to monies loaned to a foreign corporation – where the loan was recalled and not repaid – where a foreign court ordered that the loan be repaid – where no repayments were made and the respondent returned to Australia – whether the applicant could pursue the defendants for the judgment debt at common law in circumstances where the judgment was not registrable under the Foreign Judgments Act 1991 (Cth) – conditions that must be met before a foreign judgment debt can be enforced – where only some of the foreign defendants were before the court– where the meaning of the foreign judgment was in dispute – whether the foreign defendants were jointly and severally liable

Cases cited:

Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469

Blohn v Desser [1962] 2 QB 116

Emanuel v Symon [1908] 1 KB 302

Hong Kong & Macao Glass Co v Gritton (1886) 12 VLR 128

Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300

Nouvion v Freeman (1889) 15 Appeal Cases 1

Perry v Zissis [1977] 1 Lloyd’s Rep 607

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259

R v McLeod (1890) 11 LR(NSW) 218

Vogel v R & A Kohnstamm Ltd [1971] 2 All ER 1428

White v Verkouille [1989] 2 Qd R 191

Williams v Jones (1845) 13 M&W 628; 153 ER 262

Statutes cited:

Foreign Judgments Act 1991 (Cth), ss 6, 10, 11

Uniform Civil Procedure Rules (Qld), r 292

COUNSEL:

Mr F G Forde for the applicant

Mr K J Graham for himself

SOLICITORS:

Holland & Holland solicitors for the applicant

The applicant is the executor of the estate of Mr H M Mead (“the deceased”) who died on 4 February 1996. The applicant seeks summary judgment against the respondent under r 292 of the Uniform Civil Procedure Rules on the basis that the respondent has no real prospect of successfully defending the applicant’s claim and that there is no need for a trial of the matter.

The applicant has brought an action against the respondent and another defendant based on a debt that is said to have arisen as a result of a judgment entered against the respondent and others, and in favour of the applicant, by the Regional Trial Court in the Republic of the Philippines (“the Philippines proceedings”).

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Martyn v Graham

Details

AGLC: Martyn v Graham [2003] QDC 447
Case: [2003] QDC 447
Decision Date: 13 November 2003

CaseChat Overview and Summary

In the matter of Martyn v Graham, the plaintiff, as the executor of an estate, sought to enforce a foreign judgment debt against the defendant, who had returned to Australia after a foreign court ordered the repayment of a loan to a foreign corporation. The loan was recalled and not repaid, leading to the foreign court's order for repayment. The plaintiff's application for summary judgment was based on the premise that the foreign judgment could be pursued at common law, despite it not being registrable under the Foreign Judgments Act 1991 (Cth). The court was tasked with determining the appropriate conditions for enforcing a foreign judgment debt at common law, particularly in the context of a dispute over the meaning of the foreign judgment and the liability of the defendants.

The court considered the criteria for enforcing a foreign judgment debt at common law, which includes the judgment being final, conclusive, and capable of enforcement in the country where it was made. It also examined the implications of the Foreign Judgments Act 1991 (Cth) and whether the foreign judgment met the requirements for enforcement. Additionally, the court addressed the issue of whether the defendants were jointly and severally liable, given that only some of the foreign defendants were present in the case, and the meaning of the foreign judgment was contested.

The court found that the foreign judgment did not meet the criteria for enforcement at common law due to the dispute over its meaning and the absence of all relevant defendants. Consequently, the application for summary judgment was dismissed. The court emphasised the necessity for all conditions to be met before a foreign judgment debt could be pursued in Australia, highlighting the importance of clarity regarding the judgment's terms and the presence of all liable parties.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Martyn v Graham [2003] QDC 447
PARTIES:	WILLIAM ROSS MARTYN as Executor of the Estate of Harold Maxwell Mead deceased Applicant v KENNETH JOHN GRAHAM Respondent
FILE NO/S:	669 of 2003
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	13 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2003
JUDGE:	Shanahan DCJ
ORDER:	Application dismissed.
CATCHWORDS:	SUMMARY JUDGMENT – application made pursuant to r 292 UCPR – whether it was appropriate that summary judgment be entered ENFORCEMENT OF FOREIGN JUDGMENT AS A DEBT DUE AT COMMON LAW – where applicant was the executor of an estate entitled to monies loaned to a foreign corporation – where the loan was recalled and not repaid – where a foreign court ordered that the loan be repaid – where no repayments were made and the respondent returned to Australia – whether the applicant could pursue the defendants for the judgment debt at common law in circumstances where the judgment was not registrable under the Foreign Judgments Act 1991 (Cth) – conditions that must be met before a foreign judgment debt can be enforced – where only some of the foreign defendants were before the court– where the meaning of the foreign judgment was in dispute – whether the foreign defendants were jointly and severally liable *Cases cited:* Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 Blohn v Desser [1962] 2 QB 116 Emanuel v Symon [1908] 1 KB 302 Hong Kong & Macao Glass Co v Gritton (1886) 12 VLR 128 Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300 Nouvion v Freeman (1889) 15 Appeal Cases 1 Perry v Zissis [1977] 1 Lloyd’s Rep 607 Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 R v McLeod (1890) 11 LR(NSW) 218 Vogel v R & A Kohnstamm Ltd [1971] 2 All ER 1428 White v Verkouille [1989] 2 Qd R 191 Williams v Jones (1845) 13 M&W 628; 153 ER 262 *Statutes cited:* Foreign Judgments Act 1991 (Cth), ss 6, 10, 11 Uniform Civil Procedure Rules (Qld), r 292
COUNSEL:	Mr F G Forde for the applicant Mr K J Graham for himself
SOLICITORS:	Holland & Holland solicitors for the applicant